Introduction

1. Ecuador vs. Columbia: Constitutional and International Law in Defence of the Health of Indigenous Populations By, Laura Westra, Ph.D., Ph.D.(Law)Professor Emerita (Philosophy) University of WindsorSessional Instructor, Faculty of LawSessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University E-mail: lwestra@interlog.com Website: www.ecointegrity.net

2. Introduction [P]ublic health and safety are not simply the aggregate of each individual’s interest in health and safety...Public health and safety are community or group interests. Human collective rights are not present in many legal instruments and those that exist can be claimed to be explicitly collective, may be in direct conflict with public health mandates. For instance the “right to development” hides the real question that should be asked, that is, “what is “development” and also “whose development” is promoted. Beauchamp, Don, 1988, “Community: The Neglected Tradition of Public Health”, Hastings Centre Reports, December 1985 28 29 see Chimni, Bhupinder, 2008, “The Sen Conception of Development and Contemporary International Law Discourse: Some Parallels”, The Law and Development Review, Vol.1, Issue 1, Art.2,p.3; see also Westra, L., 2009, Environmental Justice and the Rights of Ecological Refugees, Earthscan, London, UK, pp.79-94

3. The Meaning of Public Health and Collective Rights The conflict with public health and vulnerable populations is easy to anticipate: the “ecological model of public health” (Meier, Benjamin, Mason, 2006, “Employing Human Rights for Global Justice: The Promise of Public Health in Response to Insalubrious Ramifications of Globalization”, 39 Cornell Int’l L.J. 711 743 ) is gaining acceptance in public health, as do the multiple etiologies of what Paul Farmer terms “structural violence” (Farmer, Paul, 2003, Pathologies of Power: Health, Human Rights and the New War on the Poor,.....; see also Farmer, Paul, 1999, Infections and Inequalities: The Modern Plagues, U. of California Press, Berkeley, CA), and what this author has defined as “Ecoviolence” (Westra, Laura, 2004, Ecoviolence and the Law, Transnational Publishers, Inc., Ardsley, NY) , both concepts continue to gain “consensus among public health scholars”. (Meier, 2006:743; see also Meyer, Ilan H. and Schwartz, Sharon, 2000, “Social Issues as Public Health: Promise and Peril”, 90 Am.J.Pub. Health, 1189) This we can consider the collective right to public health as a formal restraint to the consequences of globalization: It is the collective level—the level at which globalization operates—that human rights must respond. By transmitting human rights discourse from individual to collective human rights, human rights can combat globalization’s insalubrious effects, giving states the discoursive tools required to fulfill the public right to health through public health systems. (Meier, 2006:747)

4. What is the Real Meaning of the Right to Health? The term “public health” refers generally to the obligations of the government to fulfill the collective rights of its peoples to ‘conditions in which people can be healthy. Whereas medicine focuses primarily on individual curative treatment in clinical settings, public health – a form of social medicine – protects and promotes the health of entire societies... (Meier, 2006:239; see also Institute of Medicine, The Future of Public Health 7, 1988; note that the 1986 Ottawa Charter for Health Promotion, added “health promotion” to “health protection”; see also John Raeburn and Sarah MacFarlane, 2003 “Putting the Public into Public Health: Towards a More People-Centred Approach”, in Global Public Health: A New Era, Robert Beaglehole ed. 243 245) Dealing, as it does, with society and communities, public health requires regulations and legal instruments to implement the collective rights it supports.

5. State Obligations Hence states are charged with the implementation and regulation of public health. But not all public health models lend themselves equally to the facilitation of the protection of citizens. Benjamin Meier traces the history of public health through the development of three main periods, each with a different emphasis. But the “microbial model” of public health, prevailing until after the second World War (Meier, 2006:741), eventually gave way to the “behavioural mode” of disease, lasting until the early nineties, finally, “the rise of the “ecological model” has led researches to examine structural underlying determinants of health”. (Meier, 2006:742)

6. Environmental Conditions Recently a number of scholars, from Anthony McMichael (McMichael, A.J. 1995, “The Health of persons, Populations and Planets: Epidemiology Comes Full Circle”, Epidemiology and Society, Epidemiology Resources, London; McMichael, A.J. Planetary Overload, 1995, Cambridge University Press, Cambridge), to Jonathan Patz(Patz, Jonathan, 2005, “Impact of Regional Climate Change on Human Health”, Nature vol.384, 310-317), to Susser and Susser(Susser, Mervyn and Susser Ezra, “Choosing a Future for Epidemiology: II from Black Box to Chinese Boxes and Eco-Epidemiology”, 1996, 86 Am.J.Pub. Health 674), all emphasized “environmental conditions”, including air, climate, water, food, particularly as all the areas are under attack in various ways through globalization and climate change. In the final analysis, “environmental conditions” or even a “healthy environment” are to be taken into consideration and even coupled, at times, with human rights. Yet the vaguess of both expressions remains: what is a “healthy environment”? A sustainable one, or one that simply produces well for the present is not enough, unless strict conditions are in place for the protection of areas of integrity of a sufficient size to support long-term health.

7. General Commen No. 14-1 The Comment only calls for “the minimization, so far as is reasonably possible, of the causes of health hazards inherent in the working environment”, without any attempt to define the meaning of “reasonably practicable”, or to explore why any hazard in the work place should be considered to be “reasonable” at all. No.16 in the same document, addresses the details of Article 12.2(c), “the right to prevention, treatment and control of diseases”, but environmental safety is the only environmental reference, as a “social determinant of good health”.

8. General Commen No. 14-2 Thus, even in a document entirely devoted to “Substantive Issues regarding the Implementation of the ICESCR”, as recently as 2000, the question of the ecological conditions of the environment is not discussed as a separate issue, in order to achieve clarity: for instance both HIV/AIDS and gender issues receive far more attention, than what might constitute an impermissible alteration of local ecologies in any given area. No.27 on “Indigenous Peoples” is the paragraph that comes closest to this goal, as it states, inter alia; …the vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples should also be protected. Further, it adds that, …the Committee considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health.

9. Impact on Indigenous Communities The second cited paragraph represents a significant understatement, as it belittles what amounts to an ongoing crime against humanity. (Wald, Patricia M., 2007, “Genocide and crimes Against Humanity”, Washington University Global Studies Law Review 6, No.3, 621-633 621; Ratner, Steven R., 2007, “Can We Compare Evils? The Enduring Debate on Genocide and Crimes against Humanity”, Washington Global Studies Law Review, Vol. 6, 583; Sachs, Wolfgang…). Westra, L., 2007, Environmental Justice and the Rights of Indigenous Peoples, Earthscan, London) As Indigenous communities severed from their territories and the practice of their traditions, for the most part, cannot survive as peoples. In addition, although the attacks against Indigenous and local communities are the most obvious and visible examples of the consequences of globalized “development” leading to what I have termed “ecocrimes” (Westra, 2004), Section 27 of the Comment does not go beyond the obvious. Affluence and dwelling in more developed towns and cities, may serve to insulate to some extent, people in general from the effects of ecological disintegrity, although environmental disasters may destroy even that precarious balance, as we saw, for instance in the US in the aftermath of hurricane Katrina, with its legacy of internally displaced persons (IDPs) with all the health hazards that condition entails. (Westra, Laura, 2009, Environmental Justice and the Plight of Ecological Refugees, Earthscan Publishers, London, UK)

10. Standards of Health A recent article published by The Lancet(GunillaBackman et al., 2008, “Health Systems and the Right to Health: An Assessment of 194 Countries”, The Lancet, 2047-85) argues that the Universal Declaration of Human Rights (1948) “laid the foundations for the right to the highest attainable standards of Health”, and concludes that: Right-to-health features are not just good management, justice, or humanitarianism, they are obligations under human rights law. (ibid., 2047) In addition, Gostin cites the International Sanitary Regulations (ISR), adopted by the member states of the WHO (Pursuant to the WHO’s Article 21 powers). Since 1969, these regulations were renamed International Health Regulations (IHR). In 2005, they were fundamentally revised to include many global pandemics, such as HIV/AIDS, SARS, avian flu, Marburg, and even bioterrorism. (Gostin, Lawrence O., 2008, Public Health Law, 2nd ed., University of California Press, Berkeley CA, 246 ) Article 1 of the IHR defines a public health risk as follows: …a likelihood of an event that may adversely affect the health of human populations, with emphases on one which may spread internationally or may present a serious and direct danger. (Gostin, 2008:246; see also Fidler, David P.,2005, “From International Sanitary Conventions to Global Health”, Chinese Journal of International Law, 4:325-92; Forrest, Michelle,2000, “Using the Power of the World Health Organization: The international Health Regulations and the Future of the International Health Law”, Columbia Journal of Law and Social Problems, 33:153-79; Taylor, Allyn L.,1997, “Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations”, Houston Law Review, 33:1327-62)

11. The Right to Health If we accept the claims advanced by The Lancet’s article and the general sense of Gostin’s authoritative work, then the right to health appears to be a collective right “par excellence”, or the clearest example of a collective right no one can refuse to consider as primary and basic. It is a collective right not only to health care after the fact of various chemical and hazardous exposures, a degraded and unproductive environment, anthropogenically produced climate change, desertification leading to famine, and the like, but to the right to health and normal human development as such before being exposed to the litany of harmful situations listen above.

12. A State Obligation It is unfortunate that neither legal scholars, nor yet experts in public health declare clearly the obligation of states, and of other non-state actors, to work to promote public health through prevention, first and foremost. First, preventive measures serve to reduce significantly or even eliminate the suffering of millions who either have not chosen the source of their health problems (such as cigarette smoking for instance), or have not consented to the situations that engender those problems. Thus, second, it is far more equitable to reduce or prohibit altogether the activities that cause the harms, than it is to attempt to redress the harms, once they have occurred. As well, third, many of the harms, after they have been imposed on a population, are incompensable, and abnormal births, or children born only to acquire grave diseases both mental and physical, are clear examples. (Grandjean, P. and Landrigan, P.J., 2006, “Developmental Neurotoxicity of Industrial Chemicals”, The Lancet, Nov.8)

13. Plan Colombia and the Indigenous Peoples of the Colombia/Ecuador Border Region Relying partly on Vitoria’s naturalist theory of International law, Brazil recognized the right to primordial occupation of land. While, under the pre-1988 Constitution, lands occupied by “forest dwelling aborigines” were part of the “patrimony of the Union”, i.e. property of the federal government, those lands were inalienable, and it was prescribed that the Indians “shall have permanent possession of them, and their right to exclusive usufruct of the natural resources and of the useful things therein existing [was] recognized. (Wiessner, Siegfrid, 1999, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis”, 12 Harv.Hum.Rts.J. 57 75; see also Constitution of the Federal Republic of Brazil, Art.8, XVII, art.4(4), and art.198, as cited in Pallemaerts, Marc, 1986, “Development, Conservation and Indigenous Rights in Brazil”, 8 Hum.Rts.Q. 374) Although the passage above refers to Brazil rather than Colombia, or Ecuador, the status of the latter in relation to the governments of their respective countries are similar, although Colombia, for instance, has the additional problem that Wissner terms the “fog war of narcoterrorism”. (Wissner, 1999:81)

14. Colombia Constitution Still, Colombia’s Constitution has a new “unit of protection for human rights (accion de tutela)” (Wissner, 1999:ibid.), as well as the constitutional recognition of their collective property rights; the official protection of native languages and dialects; a guaranteed share in oil and mining royalties, and respect for their cultural identity through the national education system. (Wissner, 1999:ibid.) Yet, despite their protected position within the country, the U.S. and the Colombian governments established a contract to combat the illegal drug trade in the area: ...the agreement, labeled Plan Colombia, involved the eradication of illegal crops in Colombia, using the aerial herbicide Roundup, which was produced by the American chemical company Monsanto. (Mayers, Rebekah, 2009, “Plan Colombia and the Dangers of Aerial Herbicides”)

15. Development or Neo-Colonialism? Can we consider this “plan” an effect of development? Perhaps not in principle; but neocolonialism or the economic/political power of a stronger and richer state against a poorer and weaker one, is indeed a major aspect of globalized development. The problem is that “glyphosate”, the major component of Roundup, cannot be directed only to the coca plants slated for eradication, as it is sprayed aerially. The UN Commission on Human Rights (UN Commission on Human Rights, 58th Session, Jan.24, 2002), states that, Reports indicate that the mixture likely contains herbicide concentrations that are more than five times greater then levels [permitted] for aerial application. (Mayer, op.cit., p.15)  Because the airplanes fly over the border region between Colombia and Ecuador, the Indigenous population of Ecuador is constantly at risk, far more than the coca growers of Colombia. In addition, the Indigenous peoples of this impoverished region have little or no access to health care or other social services. (Congressional Research Service, Andrean Regional Initiative (ARI): FY 2002, Assistance for Colombia and Neighbours, Oct.31, 2001, p.9)

16. Development or Neo-Colonialsim? Cont. The violations of human rights are obvious, and the UN High Commissioner for Refugees recognizes the reality of the situation: Ecuador is arguably Colombia’s most vulnerable neighbour and has suffered profound effects from both Colombia’s internal conflict and Plan Colombia. Problems on the border include drug-related violence, increased rates of crime, kidnappings, the forced migration of Ecuadorians from their homes, effects on human health and the environment from the aerial spraying of coca that drifts across the border, and food insecurity. (United Nations High Commissioner for Refugees, Emergency and Technical Support Service, “The Ecuador-Colombia Border: Historical Links, Current Events, and Future Possibioites”, May 2008 p.5) Hence, it is Indigenous peoples who have been gravely affected, not “drug lords”

17. The Rights of Indigenous Peoples Even Plan Colombia (US/Colombia Project) has not achieved its goals, other than to promote, hence enrich Monsanto (a US based MNC), as it is often the case, at the expense of the health, safety and cultural integrity of the affected and displaced persons in the local Indigenous communities. These activities and their results are in direct conflict with the mandates of the UN Declaration of the Rights of Indigenous Peoples (Article 7), ensuring them, “life, physical and mental integrity, liberty and security of person”. (UN Declaration of the Rights of Indigenous Peoples, Article 7, http://www.un.org/esa/socdev/unpfii/en/drip.html) In addition, the survival of the traditional culture should be equally protected, as all activities that might affect their lands or resources, are in violation of Indigenous rights. (UN, ibid., Article 8) Nor is this particular case unusual or the first “attack” on Indigenous Rights and survival, as oil companies have also carried out their “development” in the region for some time, with grave effects on the health of the local populations, especially in Ecuador and the Amazon region. (Acosta, Andres Mejia, 2007, “Ecuador”, Freedom House; see also Earth Justice, Jan.15, 2002, “Aerial Herbicide Spraying Violates the Human Rights of Peasant and Indigenous Communities in Colombia and Ecuador” see http://earthjustice.org/news/press/002/aerial_herbicide_sprayign_vilates_human_rights_of_peasants_and_indigenous_communiiteis_in_colombia_and_ecuador.html: see also Tenebaum, David, 2002, “Pesticides Coca-Killing Controversy”, Environmental Health Perspectives, Vol.110, no.5 (May, 2002) p.A236; Wolcott, Judith, 2002, “Spraying Crops, Eradicating People”, Cultural Survival Quarterly Indigenous Responses to Plan Colombia, 26:4, Winter 2002; see http://www.culturalsurvival.org/home/; see also Anya, 2004: 134 and the Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, O.A.S.Doc.OEA/Ser.L/V/II.9b, doc.10, rev.1, Chapter IX (April 24, 1997) )

18. Toxic Effects Despite the efforts of the US government to maintain secrecy, the substance sprayed was identified as glyphosate herbicide, manufactured by Monsanto under the brand name Roundup, although it has now been established that it is in fact Roundup SL, “considerably more toxic than Roundup Ultra”. (Oldham and Massey, 2002, ISIS Occasional Paper, pp.1-2) The health effects have been studied for some time: Aerial Spraying has a significant negative effect on the lives of large numbers of people, particularly the rural poor in Colombia. These is strong evidence linking spraying with serious human health effects; large-scale destruction of food crops; and severe environmental impacts in sensitive tropical ecosystems. There is also evidence of links between fumigation and loss of agricultural resources, including fish kills, and sickness and death of livestock. (Oldham and Massey, 2002:2)

19. The Indigenous Peoples of Putumayo The Indigenous Cofan people of the Putumayo province, complained to their Health department of “dizziness, diarrhea, vomiting, itchy skin, red eyes and headaches (Oldham and Massey, 2002:3), after the spraying and similar reactions were reported in Ecuador near the Colombia border, in the Sucumbio Province as well as in Mataje, Esmeraldas. In September 2001, the Ecuadorian Indians who live near the Colombian border, filed a class action suit against Dyn-Corp Corporation, the company in charge of the spraying in Colombia. (Aguasanta Arias et al. vs. DynCorp, Class Action Complaint for Equitable Relief and Damages, Filed in the US District Court, District of Columbia, Sept.11, 2001) The physical and monetary damages were evident, as was and is, the loss of cultural integrity and identity of these peoples many of whom had to abandon their homes.

20. The Legality and Morality of Pesticide Use Even if we consider the use of Roundup permissible in the general sense, and it is worth noting that, after a recent case in the Canadian Province of Quebec, where a small town in that province eliminated the use of pesticides (114957 Canada Ltéé (Spraytech, Societéd’arrosage) v. Hudson (Town) 2001 2SCR 241)for health and environmental reasons, (even when used at least in areas where it can be monitored by the USEPA or the Canadian Environmental Protection Act), even the province of Ontario has eliminated the use of pesticides/herbicides for cosmetic use. But the mode of application in Colombia offers no protection to vulnerable people. The specific conditions and lifestyle of the affected populations eliminates any hope that the required safeguards might be in place.

21. Community Rights In fact it appears that the domestic legal structure, as well as the social and health services infrastructure are—in practice—totally unable to deal with the actual problems created by the spraying operations, despite Constitutional guarantees, as we shall see below. Therefore this is just one obvious practical aspect of the need for specific minority/community rights, where the actual “face” of the affected group would be understood and respected. The current regimes arising from non-specific human rights “movement”, are somewhat more focused, as  ...the third movement was to be defined precisely by minority related standard setting as a way of integrating minority provisions into the international framework of human rights beyond cases of gross abuse. (Pentassuglia, 2009:4)

22. A Brief Overview of the Constitutional Protection Available for the Environment in Colombia and Ecuador It is the duty of the State to protect the diversity and integrity of the environment to conserve areas of special ecological importance, and to foster the education for the achievement. This clear commitment is even proceeded by several related statements, all of which would appear to be in direct conflict with what is happening on the ground instead. They are: * Every individual has the right to a healthy environment; * The laws must guarantee the Community’s participation in the decisions that may affect the environment and * the state must also cooperate with other nations in the protection of the ecosystems in border areas. (Constitution of the Republica de Colombia, 1991) If these are constitutional mandates, it is hard to see how the government of Colombia could even enter into the Plan Colombia with the US, let alone permit the human rights violations that ensued.

23. Ecuador’s Constitution When we turn to Ecuador’s legal instruments, it is even harder to see how the country’s new Constitution, (Republica del Ecuador, 2000 – Constitution) a unique and inspirational document, could allow the country to tolerate the toxic operations taking place at their borders. The Articles approved by Ecuador’s Constitutional Assembly on July 7, 2008, state the following: Rights for Nature Article 71. Nature or Pachamama, where life is reproduced and exists, a right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognition of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution.

24. The Limits of Constitutional Power Yet we must acknowledge that even the constitution of Ecuador does not explicitly link environmental degradation and disintegrity to human rights, as, for instance, “people and communities” will have the right to benefit and to achieve/natural wealth”, rather than to have right to the protection of their life and health. Similarly even the European Court of Human Rights, the only one where one finds some of the few existing cases that link environment and human rights, makes use of Article 8 of the European Charter that is, the “right to one’s home and family life”, instead of addressing directly the right to life, to one’s dignity, and to health. (see for instance, Guerra v. Italy [1998] ECHR 14967/89; Lopez Ostra v. Spain [1994] ECHR 15798/90; Fedeyava v. Russia [2005] ECHR 55723/00; Oneryildiz v. Turkey [2004] 41 ECHR 325, 356)

25. Conclusion Although the case cited has not been resolved at the ICJ at this time, it is clear that even the best national constitutions are powerless to protect their own citizens against the threats of powerful economic interests and the thrust of globalized trade agreements. The collective human rights to health are gravely at risk, and it appears that it is urgently necessary to promote immediate legal changes at the prescriptive/legislative level, as reliance on either domestic or international instruments and courts is clearly insufficient.